The Biggest Obstacle to Beating Your Non-Compete: Judges

I had a set back recently when a judge decided to “punt” instead of making the decisions he is paid to make. I represented an employee who had been fired and whose non-compete was making it difficult for him to get another job. The language of the non-compete appeared to be extremely broad. We asked the judge to read the non-compete and decide if he agreed with us. The law is clear: Whether or not such a non-compete is reasonably limited in its operation is a question of law. Stringer v. Herron, 424 S.E.2d 547 (S.C. Ct. App. 1992)(emphasis added); see also Bicycle Transit Authority, Inc. v. Bell, 314 N.C. 219, 333 S.E.2d 299 (N.C. 1985)(“The reasonableness of a restraining covenant is a matter of law for the court to decide.”). So, when the employer argued there were “questions of fact’ the obvious response what facts do you need to read the non-compete and decide whether it is reasonable limited.

The problem is that when non-competes are at issue “just delayed is justice denied.” Employers trying to defend a non-compete are content with the court’s dragging their heels, because until the non-compete is declared unenforceable, it acts as a competitor repellant for its former employees. The “question of fact” argument is simply an attempt to slow the wheels of justice. Judges who take the bait are not only ignoring the law, but their non-decision is a de facto decision. And, this is how agreements which violate the public policy of South Carolina are given power; judges are an accomplices after the fact to attempts to stifle competition and monopolize its client base.

In my case, the employee may or may be able to secure employment; even so, he will not be able to pursue his greatest worth. His family, including the four foster children he and his wife care for, will feel the pain. Those in the market for automotive chemicals (motor oil, fuel additives) will be limited in the their business dealings, and competitive products will be disadvantaged because a knowledgeable individual is prohibited from contacting prospective buyers.

When I sit with a prospective client and give them a legal opinion, I have to admit the sad truth of the practice of law: No matter what the law says, some judges cannot be trusted to follow it. For all we hear about activist judges, my experience that “inactivist judges” are just as much of a problem. And although some of these judges have an agenda, others simply take the path of least resistance and avoid reaching a decision. There will always be another day and another judge, but, unfortunately, that day will come when the opportunity to do justice is long gone.

NOTE: Of course, it is always risky to criticize a judge, and in this case, I haven’t done it by name. And because I think this judge came at his non-decision by honest mistake and is not the type to hold grudges, I thought exercising my First Amendment rights for the benefit of others outweighed remaining silent. If I am wrong, obviously, it will not be the first time.